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Aboriginal Rights & Title,
Treaties & Traditional Territory
[W]e Aboriginal peoples, who have all the reason in the world to feel cheated and ill-treated, have never nurtured a collective desire for retribution. We have never said: Europeans go home. We recognize that we all live together in this land, that we must share, and that in the end our interests are much the same. We want peace, health and wellbeing for our children. We strive for clean water and air, happiness and freedom. We insist on mutual recognition and respect for dignity, fundamental rights, and the principle of the equality of peoples.
There is only one solution for the situation facing indigenous peoples in the north, south, west and east in the Americas. It is not more exclusion or denial or oppression or extinguishment. The only solution is a full recognition and full respect of our peoples' status and rights as peoples and, most important of all, our fundamental human right to self determination.
Land Ownership from an Aboriginal PerspectiveThe concept of land ownership was completely alien to the Native peoples. From an Aboriginal cultural and spiritual perspective, land cannot be bought or sold. They saw themselves as the spiritual guardians of the land, not its actual owners. Land was considered a gift from the Creator or Great Spirit, and its resources were to be used for survival purposes only.
Thus, the concept of 'surrendering' land was one that caused great confusion within Aboriginal communities, and may have contributed to further injustices against the Aboriginals - notably, the signings of the Upper Canada and other treaties. This Aboriginal view of land ownership is one of the roots to many Aboriginal rights and land issues today. Aboriginal RightsAs one scholar noted, "There can be no answer to the question 'what are Aboriginal rights?' that is not in the terms of the dominant, non-Native society...any answer to the question 'what are Aboriginal rights?' is already an attempt to confine, constrain, demarcate and delimit those rights and consequently part of the process of confining, constraining, demarcating and delimiting Aboriginal peoples."Source: Kulchyski, P. Unjust Relations: Aboriginal Rights in Canadian Courts
Aboriginal rights need to also be considered in the context of the patchwork process of colonization, and the relationship that has developed between the Crown and Aboriginal people from the earliest treaties to present government policies. Many would argue that Aboriginal rights can be traced in law directly to the Royal Proclamation of 1763, and arguably, to the earliest treaties and the principles of British common law. Recent interpretations of Aboriginal Rights by the Supreme Court hold that the Crown, in its dealings with Aboriginal peoples, has accepted that they "would retain their lands, as well as their political and cultural institutions and customary laws, unless the terms of treaties ruled this out or legislation was enacted to the contrary". Furthermore, the Crown has "assumed a general obligation to protect Aboriginal peoples and their lands and generally look out for their best interests, in what the judges have described as a fiduciary or trust-like obligation".
Source: Kulchyski, P. Unjust Relations: Aboriginal Rights in Canadian Courts, quotes from Slattery, B. Understanding Aboriginal Rights Canadian Bar Review 66: 727 pg. 733-35
Indian and Northern Affairs Canada describes Aboriginal rights as: Rights that some Aboriginal peoples of Canada hold as a result of their ancestors' longstanding use and occupancy of the land. The rights of certain Aboriginal peoples to hunt, trap and fish on ancestral lands are examples of Aboriginal rights. Aboriginal rights will vary from group to group depending on the customs, practices and traditions that have formed part of their distinctive cultures.
Aboriginal Water RightsView Manitoba Wildlands' Water pages section on Aboriginal Water Rights |
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Aboriginal Title |
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Aboriginal title is based on an Aboriginal group's traditional use and occupancy of that land. It is a sui generis [unique] right in land. It is inalienable, except to the Crown and has its legal source in prior occupation of the land. Aboriginal title is held communally, not by any one member of an Aboriginal Nation. Although Aboriginal title is a right in land, and not tied to any particular 'Aboriginal use', there is an inherent limit on the possible uses that can be made of the land. For instance, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship. If there is to be an infringement on Aboriginal title the government must recognize its fiduciary relationship with Aboriginal people, and ensure that there is as little infringement as possible, that fair compensation is made available and that the Aboriginal group has been consulted. In 1973, the Supreme Court of Canada first recognized land rights based on Aboriginal title. Indian and Northern Affairs Canada describes Aboriginal title as: A legal term that recognizes Aboriginal interest in the land. It is based on their longstanding use and occupancy of the land as descendants of the original inhabitants of Canada.
Treaties |
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| A "Treaty" is a written agreement or contract made between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns or the supreme power of each state. In Canada, treaties are constitutionally recognized agreements between the Crown and Aboriginal nations. |
Historical Treaties of Canada Map Larger Version |
| The signing of treaties in Canada extinguished Aboriginal title (but not Aboriginal rights) within those lands delineated by the treaty. (However, there are lands in Canada where treaties were never signed and Aboriginal title to land was never extinguished. Such is the case in most of British Columbia.) View the Treaty texts The Royal Proclamation of 1763
The Royal Proclamation of 1763, issued by King George III after the fall of Quebec and the Treaty of Paris, is a primary basis for our understanding of the legal nature of Aboriginal title and an historical root of the treaty process. It articulated the basic principles for treaty making with Aboriginal peoples. The Royal Proclamation of 1763 decreed that Aboriginal peoples should not be disturbed in their use and enjoyment of the land and it declared that only the Crown could acquire land from Aboriginal peoples, and only through treaty-making. It set the stage for the negotiation of legally binding documents with Aboriginal peoples on a wide variety of issues and its provisions influenced the treaty process as well as the designation of reserve land, which still take place in accordance with the Indian Act.
View the text of the Royal Proclamation of 1763 View a map depicting the lands to which the Royal Proclamation of 1763 applied |
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Canadian Constitution Act - Section 35 |
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The constitutional character of past and future treaties between Aboriginal peoples and the Crown, which was outlined in the Proclamation of 1763 (see above), was renewed in the Canadian Constitution Act of 1982. Section 35 was a 1982 Amendment to the Canadian Constitution; it recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. This amendment meant that existing Aboriginal and treaty rights became part of the supreme law of the land in Canada, and could not be abrogated or denied by any government. View the Canadian Constitution Act (1982) - Section 35 Historic Manitoba Treaties
There are five historic numbered treaties that include lands in what is now Manitoba.Treaty 1 was signed in 1871 - View Treaty document Treaty 2 was signed in 1871 - View Treaty document Treaty 3 was signed in 1873 - View Treaty document Treaty 4 was signed in 1875 - View Treaty document Treaty 5 was signed was signed on a variety of dates beginning on September 20, 1875 and concluding on September 7, 1876 - View Treaty document There were several adhesions to Treaty 5 (where Aboriginal signed on or were added to a Treaty at a later date) that took place between June 26, 1908 and August 10, 1910. View a map of Manitoba Treaties View a larger map of Manitoba Treaties Beginning in the 1870's, some Manitoba Aboriginal communities (or Indian Bands) signed treaties with representatives of the English monarchy. Other Aboriginal communities (or Indian Bands) did not actually sign treaties, but were included in treaties through an addendum. The benefits to non-Aboriginal peoples included the continued right to live in traditional territories. Essentially, the Aboriginal communities (or Indian Bands) agreed to share the land with the newcomers in exchange for promises that the needs of their future generations would be met. Aboriginal peoples' philosophy of maintaining harmony formed the basis of these agreements. The treaties are considered sacred documents by the Aboriginal peoples of Manitoba and many Elders have passed on their recollections of the treaty negotiations through oral history. Some Elders have indicated that the written versions of treaties did not include everything that was agreed to by the negotiators. Source: Assembly of Manitoba Chiefs
View a summary of Treaties One to FiveAboriginal Traditional TerritoriesTraditional territory (off reserve) refers to the land which surrounds a First Nation community that was and still may be used by the First Nation community to practice a subsistence way of life - that is, land where hunting, trapping, fishing, and gathering activities were historically practiced, and that still may be used by the community for cultural and livelihood purposes.
Source: Campbell, T. Information North, Vol 22, no.1 (March 1996) |
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Duty to Consult with Aboriginal Peoples |
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| Governments in Canada - both federal and provincial - are increasingly acknowledging the duty to consult with Aboriginal communities that arises as a result of Section 35 of the Constitution. Section 35 recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. Canadian courts (e.g. Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, at para. 57) have ruled that whenever Crown decisions or actions have the potential to adversely affect treaty rights or any other Aboriginal or First Nations' interest, the Crown has a duty to consult potentially affected Aboriginal peoples, with the intention of accommodating or substantively addressing their concerns. Government decisions about public lands and waters within which Aboriginal peoples have an interest by definition therefore also can trigger the duty to consult. Policies or guidelines for Consultations with Aboriginal peoples need to be designed to ensure that the duty to consult is fulfilled in a way that is consistent with current legal decisions and is respectful of individual communities' traditions and consultation requirements. The Government of British Columbia, Ministry of Forests established written policy and guidelines for consultation with Aboriginal peoples in 2003.  Download May 14, 2003 BC Ministry of Forests Aboriginal Rights and Title Policy (PDF)Download 2003 BC Ministry of Forests Aboriginal Consultation Guidelines (PDF)In May 2008 the Manitoba Government released its Provincial Policy for Crown Consultations with Aboriginal Peoples. The Policy and Guidelines contains principles to guide the consultation between the Government of Manitoba and an affected Aboriginal community when a consultation is required. It contains a list of considerations to be reviewed as part of the process of designing a consultation protocol between government and an individual community. The new policy does not appear to apply to Métis peoples in Manitoba, despite being titled as if it applies to consultations between both First Nations and Métis communities and the Manitoba government. Download May 2008 Government of Manitoba Provincial Policy for Crown Consultations with Aboriginal Peoples (PDF)The May 2008 policy statement expands on the draft policy statement released in 2007 (see below). It contains additional 'Guiding Principles' regarding, for instance,
This policy has not yet been subject to review by independent legal counsel. As of mid May there is no indication of steps for alterations, additions, or ratification of the contents of this 2008 paper. Nor has there been any indication of results of review of the 2007 consultations paper. Responsibility for Aboriginal consultations appears to have moved from a branch inside Manitoba Conservation to Manitoba Aboriginal Affairs. The Government of Manitoba released a draft Provincial Policy and Guidelines for Consultations with Aboriginal Communities for comment and feedback in September 2007. Download the September 2007 Government of Manitoba draft Provincial Policy and Guidelines for Consultations with Aboriginal Communities (DOC)Prior to the release of the September 2007 draft consultation policy, Manitoba did not have any standards in place for consulting with Aboriginal communities. The draft posted above has not to date been endorsed by any First Nation or Aboriginal entities in the province. | |||
Modern Treaties and Land Claims |
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Modern treaties come in several forms, including
Comprehensive Land Claims
Comprehensive land claims are negotiated in areas where Aboriginal title has not been dealt with by Treaty or other legal methods. The main goal of the comprehensive land claims settlement process is to provide certainty of jurisdiction over land and resources - the rights and obligations of all parties are clarified, and conflicting land ownership between the Crown and Aboriginal peoples is resolved.
View a listing of Some of Canada's modern Treaties from lands claims Treaty Land Entitlement - Manitoba
The Treaty land entitlement (TLE) process is another form of modern Treaty. The Treaty land entitlement process aims to settle the land debt owed to those First Nations who did not receive all the land they were entitled to under the historic numbered treaties signed by the Crown and First Nations. Once the amount of land is determined through the negotiation process, a First Nation may purchase federal, provincial (territorial), or private land to settle a land debt.
In 1977, the Treaty Land Entitlement Committee of Manitoba Inc. was formed to begin negotiations on behalf of Manitoba First Nations to settle outstanding TLEs with Canada. Not all Manitoba First Nations entitled to TLE lands are/were represented by the Manitoba TLE Committee.Visit the Treaty Land Entitlement Committee of Manitoba website The province's role in the TLE process stems from the provisions of the Manitoba Natural Resources Transfer Agreement (MNRTA) of 1930. Prior to 1930 and from the time Manitoba entered Confederation in 1870, the federal government retained control over unallocated Crown lands in the province, along with other natural resources. The Manitoba Natural Resources Transfer Agreement (MNRTA) of 1930 transferred control and administration of these resources and lands to Manitoba, but required the province to provide Canada with sufficient unoccupied Crown land to fulfill outstanding TLE obligations to Manitoba First Nations. Today the MNTRA Act is contentious, and in dispute. View the text of the Manitoba Natural Resources Transfer Act 1930 Although Canada, Manitoba and the TLE Committee began negotiations in 1983, the three parties did not finalize the agreement and little progress was made. It wasn't until May 29, 1997, the Manitoba Treaty Land Entitlement Framework Agreement was signed by the TLE Committee (representing 20 First Nations), Canada and Manitoba at the Opaskwayak Cree Nation, MB. This Framework Agreement is intended to fulfill Canada's outstanding debt of lands owed to the 20 TLE Committee member First Nations. View Canadian government Status Report on TLE Obligations in Manitoba Manitoba's Northern Flood Agreement
In the early 1970's, Manitoba Hydro was proceeding with its plans for hydro-electric projects on the Nelson and Churchill Rivers. As the plans for the Lake Winnipeg Regulation/Churchill River Diversion projects evolved, discussions began with five northern communities that would be affected by flooding from the projects.
In 1974, the five affected First Nations formed the Northern Flood Committee to act jointly in consultations with Manitoba Hydro and the Governments about the projects. The Northern Flood Committee, funded by the Federal Government, negotiated the Northern Flood Agreement (NFA) and the agreement was signed in 1977. The five NFA First Nations are Split Lake - now Tataskweyak Cree Nation, Nelson House - now Nisichawayasihk Cree Nation, York Factory, Norway House and Cross Lake - now Pimicikamak Cree Nation. As the effects of the project were not fully be predicted at the time the NFA was negotiated, provisions were made for future remedial and compensatory activities:
View the text of the Northern Flood Agreement Visit the Northern Flood Agreement Office of the Arbitrator website Implementation of the NFA proved difficult. In 1986, the Northern Flood Committee Inc. proposed that a comprehensive implementation agreement be developed. Through the 1990s, Tataskweyak Cree Nation, York Factory Cree Nation, Nisichawayasihk Cree Nation, and Norway House Cree Nation signed Comprehensive Implementation Agreements (CIAs) with Canada, Manitoba and Manitoba Hydro. In the case of Norway House, their CIA is known as the Master Implementation Agreement (MIA). View the four settlement Agreements under the NFA
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Recent Court Decisions - Aboriginal Rights |
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Métis Lands |
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 The first Métis people were the children of unions between Aboriginal women (Woodland Cree, Ojibway, Saulteaux, and Menominee) and European men (French Canadian and/or Celtic settlers). These children of mixed ancestry gradually established distinct communities outside of Aboriginal and European cultures and settlements. The intermarriages between Métis women and Métis men resulted in the genesis of a new Aboriginal people - the Métis.The Métis shaped Canada's expansion westward through their on-going assertion of their collective identity and rights. From the Red River Resistance to the Battle of Batoche to other notable collective actions undertaken throughout the Métis Nation Homeland, the history and identity of the Métis people will forever be a part of Canada's existence. Today, the Métis people are alive and well within Canada; however, they continue to push for the respectful recognition and reconciliation for their Aboriginal rights and existence within the Canadian federation. The Métis people assert that they are a distinct Aboriginal nation - this claim is based on the Métis' shared history, a common culture (song, dance, dress, national symbols, etc.), a unique language (Michif with various regional dialects), extensive kinship connections from Ontario westward, a distinct way of life, a traditional territory and a collective consciousness. 'Métis' means a person who self-identifies as Métis, is of historic Métis Nation Ancestry, is distinct from other Aboriginal Peoples and is accepted by the Métis Nation. The Métis Nation is based in western Canada and they define their Homeland as the traditional territory upon which the Métis people have historically lived and relied upon. This territory roughly includes the 3 Prairie provinces (Manitoba, Alberta and Saskatchewan), parts of Ontario, British Columbia and the Northwest Territories, as well as, parts of the northern United States (i.e. North Dakota, Montana). Source: Summarized from Métis National Council
Visit the Métis National Council websiteVisit the Manitoba Métis Federation website Visit the Métis Culture & Resource Centre |
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Métis Scrip Lands & Métis Rights |
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When Manitoba entered Confederation in 1870, the Dominion government promised to give the Métis population a large amount of land. In the eyes of government officials and politicians, the Métis were not a distinct group.Section 31 of the Manitoba Act reserved 1.4 million acres in the new province "toward the extinguishment" of Aboriginal title claimable by persons of part Aboriginal ancestry - this was to be divided between the children of the Métis families. Métis were given 160 acres of land or scrip valued at $160. This was the beginning of the Métis Nation being "enfranchised" from the Indian Act and it wasn't until 1982, with the enactment of The Canadian Constitution Act, that the Métis Nation was once against recognized as an Aboriginal People of Canada. This was very important for the Métis, as prior to that time, their claim of Aboriginal rights and title to lands had gone legally unrecognized. Since then, the Métis have begun to build a case for recognition of their traditional rights, such as rights to hunt and trap. In 2003, a court ruling in Ontario - the Powley Decision - found that an Ontario Métis community has the Aboriginal right to hunt for food, a decision seen as a first step toward granting full hunting rights to the community. On May 31, 2005, the Government of Canada and the Métis National Council signed a framework agreement to pave the way for self-government for the Métis in the homeland. Source: Wikipedia, Turtle Island Productions
Download information on Manitoba Métis Rights and Land Claims (PDF)View information on the Powley Decision Visit the website of the Federal Interlocutor for Métis and Non-Status Indians View the July 26, 2006 Manitoba Wildlands news item View the September 28, 2006 Manitoba Wildlands news item View the December 13, 2007 Manitoba Wildlands news item |
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2002-2008